Anglo-American
Contract and Torts
Prof. Mark P. Gergen 18. Manifested Assent—Offer and Acceptance and the Objective Theory Obligation in contract requires 1) Manifested assent to the obligation (such as by promise, agreement, offer and acceptance . . .). 2) A legal basis for enforcing the obligation such as consideration. 3) Sometimes written evidence of the obligation under the statute of frauds. Objective theory When there is a misunderstanding about the existence or meaning of a contract, the law adopts the more reasonable view. Generally a party is held to the terms of a contractual document he signs even if does not read the document. Adams v. Lindsell, Text 131. D mails an undated offer that is mis-addressed and so delivered late. P mails immediate acceptance. D sells goods in interim. There is a contract. D was more at fault in the misunderstanding about the timeliness of the acceptance. Contract does not require a “meeting of the minds.” A person may conclude a contracting not intending to do so. Common law rejects the “will theory” of contract. A contract is a product of outward manifestation of intent. Not actual intent. But assent is not always determined objectively. Generally the law gives effect to shared subjective understanding. A and B pretend to make a contract to fool C. There is no contract between A and B. A known and sometimes even a suspected error in communication cannot be exploited. A gives B papers to sign knowing B will not read them carefully. A craftily includes among the papers a contract A knows B would never agree to. There is no contract though B signs. A may be liable for fraud for knowingly misleading B. Raffles v. Wichelhaus, Text 133. Contract for India cotton to be delivered by the “Peerless.” B understands this to mean the Peerless that sailed from India in October. S understands it to mean the Peerless that sailed in December. B refuses to accept delivery of cotton from the later vessel. Milward makes 2 arguments at Text 134: i) the misunderstanding was immaterial; ii) evidence there were 2 ships is inadmissible to challenge written agreement. Mellish argues there was “consensus ad idem” (“no meeting of the minds”) and so no contract. Court agrees. Unstated premise is that neither party is more at fault. If point of disagreement is material then there is no contract. The contract fails based on “mutual misunderstanding.” Contract is voidable, not void. Either party may opt to affirm the contract by embracing the other party’s understanding. The misunderstanding must be material. If performance has occurred, then conduct may resolve the misunderstanding. If not, then there will be a restitution (noncontractual) claim for compensation for any benefit conferred. Review Objective theory--if there is a misunderstanding about existence or terms of contract, then courts generally adopt the more reasonable view. Courts will give effect to shared subjective understanding. A party may not take advantage of an error in communication if he knows or has good reason to know of the error. Mutual misunderstanding on a material term makes a contract voidable. “An offer is the manifestation of a willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement 2nd § 24 Did the sender reasonably appear to intend to invite the recipient to conclude a contract by acceptance? An offer terminates if a stated time limit passes, after a reasonable time, if it is rejected, if it is revoked, if the offeror dies, etc . . . . Text 125-129. An acceptance must be unequivocal and on the terms of the offer to be effective. Text 129-130. “Mirror image rule.” This is relaxed by UCC § 2-207. Adams v. Lindsell, Text 131. D mails an undated offer that is mis-addressed and so delivered late. P mails immediate acceptance. D sells goods in interim. The contract is formed when P mails the acceptance. This is called “the mailbox rule.” P’s power to accept would be terminated if D communicated the fact it had sold goods to another before P accepted under the rules on revocation. Carlill v. Carbolic Smoke Ball Co., Text 124 Advertisement in newspapers to pay £100 to anyone who bought and used “smoke ball” as instructed and who contracted influenza. An advertisement generally is not interpreted as an offer. People do not generally make open-ended commitments to the public. What facts make this general rule inapplicable? What fact did Lindley LJ think was crucial? See Text 124 bottom. Livingstone v. Evans, Text 126. (1) S offers land to B for $1800 (2) B counter-offers $1600 and asks S for his lowest price. (3) S replies “Cannot reduce price.” (4) B accepts original offer. Is there a contract? Did B reasonably believe initial offer was still on the table when he accepted? Why? If S had sold the land before he received B’s acceptance, then would B have a breach of contract suit against S? Re Cowan & Boyd, Text 127. Landlord offers to renew lease at increased rent. Tenant rejects and offers to renew at current rent. Landlord responds he will visit to talk the matter over. Walsh says this is a harder case. Why? An offeror is presumed to have the power to revoke an offer. Generally an offer is irrevocable only if the offeror explicitly promises to hold offer open and there is a legal basis for enforcing the promise, including •Consideration (bargain in US) •UCC § 2-205 (firm offer for sale of goods in writing signed by merchant)* •Promissory estoppel/reliance * Binding for a reasonable time not more than 90 days. In European law there is a general rule that such a commitment is binding. See Unidroit Article 2.1.4(2)(a). And an offer stating a fixed time for acceptance is interpreted as a firm offer. CISG Art. 16(2)(a); Principles of European Contract Law 2.202(3)(b). Rules on offer and acceptance determine assent when parties communicate by post or other remote means. Many of these are background rules. They can be altered by a clear expression to the contrary. Once there is performance and conduct by both parties recognizing the existence of a contract, there is tacit or implicit assent to a contract. It is unnecessary to find a contract based on the parties communications.